Jones v. Social Security Administration, Commissioner of

Filing 18

MEMORANDUM AND ORDER: The decision of the Commissioner is reversed and the case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. Signed by U.S. District Senior Judge Sam A. Crow on 2/11/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
SUSAN M. JONES,
Plaintiff,
Vs.
No. 12-2652-SAC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the defendant
Commissioner of Social Security ("Commissioner") that denied the claimant
Susan m. Jones’ (“Jones”) applications for disability insurance benefits (“DIB”)
under Title II of the Social Security Act (AAct@) and supplemental security
income benefits under Title XVI of the Act. Jones initially alleged an onset date
of July 1, 2004, (R. 125), but at the hearing, she amended this date to August
14, 2008, which is after the administrative law judge’s (“ALJ”) decision on her
prior application. (R. 26). After a hearing on the claimant’s current
applications, the ALJ filed his decision on November 23, 2010, finding the
following severe impairments: fibromyalgia syndrome, possible chronic fatigue
syndrome, one seizure, and depression/anxiety. The ALJ’s conclusion was that
Jones was not disabled as she had the residual functional capacity (“RFC”) to
perform some unskilled work at the light-exertion level. The Appeals Council

denied Jones’ request for review, so the ALJ’s decision stands as the
Commissioner’s final decision. (R. 1-3). With the administrative record (Dk. 3)
and the parties’ briefs on file pursuant to D. Kan. Rule 83.7.1 (Dks. 9, 16, ad
17), the case is ripe for review and decision.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. ' 405(g),
which provides that the Commissioner=s finding "as to any fact, if supported by
substantial evidence, shall be conclusive." The court also reviews Awhether the
correct legal standards were applied.@ Hackett v. Barnhart, 395 F.3d 1168,
1172 (10th Cir. 2005). Substantial evidence is that which Aa reasonable mind
might accept as adequate to support a conclusion.@ Richardson v. Persales,
402 U.S. 389, 401 (1971) (quotation and citation omitted). AIt requires more
than a scintilla, but less than a preponderance.@ Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence
Amust be based upon the record taken as a whole@ while keeping in mind
Aevidence is not substantial if it is overwhelmed by other evidence in the
record.@ Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal
quotation marks and citations omitted). In its review of Awhether the ALJ
followed the specific rules of law that must be followed in weighing particular
types of evidence in disability cases, . . . [the court] will not reweigh the
evidence or substitute . . . [its] judgment for the Commissioner=s.@ Lax, 489
F.3d at 1084 (internal quotation marks and citation omitted).

The court's duty to assess whether substantial evidence exists:
"is not merely a quantitative exercise. Evidence is not substantial 'if it is
overwhelmed by other evidence--particularly certain types of evidence (e.g.,
that offered by treating physicians)--or if it really constitutes not evidence but
mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988)
(quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the
same time, the court Amay not displace the agency=s choice between two fairly
conflicting views, even though the court would justifiably have made a
different choice had the matter been before it de novo.@ Lax v. Astrue, 489 F.3d
at 1084 (internal quotation marks and citation omitted). The court will
Ameticulously examine the record as a whole, including anything that may
undercut or detract from the ALJ=s findings in order to determine if the
substantiality test has been made.@ Wall v. Astrue, 561 F.3d at 1052 (internal
quotation marks and citation omitted).
By statute, a disability is the Ainability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to . . . last for a continuous period of not
less than 12 months.@ 42 U.S.C. ' 423(d)(1)(A). An individual "shall be
determined to be under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the national

economy. . . ." 42 U.S.C. ' 423(d)(2)(A).
A five-step sequential process is used in evaluating a claim of
disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails
determining whether the Aclaimant is presently engaged in substantial gainful
activity.@ Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and
citation omitted). The second step requires the claimant to show he suffers
from a Asevere impairment,@ that is, any Aimpairment or combination of
impairments which limits [the claimant=s] physical or mental ability to do basic
work activities.@ Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal
quotation marks and regulatory citations omitted). At step three, the claimant
is to show his impairment is equivalent in severity to a listed impairment. Lax,
489 F.3d at 1084. “If a claimant cannot meet a listing at step three, he
continues to step four, which requires the claimant to show that the
impairment or combination of impairments prevents him from performing his
past work.” Id. Should the claimant meet his burden at step four, the
Commissioner then assumes the burden at step five of showing “that the
claimant retains sufficient RFC [residual functional capacity] to perform work
in the national economy” considering the claimant’s age, education, and work
experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal
quotation marks and citation omitted). Substantial evidence must support the
Commissioner’s showing at step five. Thompson v. Sullivan, 987 F.2d 1482,
1487 (10th Cir. 1993).

ALJ’S DECISION
At step one, the ALJ found that Jones had not engaged in
substantial gainful activity from August 14, 2008, her amended onset date. At
step two, the ALJ found the claimant to have the following severe
impairments:

“fibromyalgia syndrome, possible chronic fatigue syndrome,

one seizure and depression/anxiety.” (R. 14). The ALJ next determined that
the medical records did not meet the criteria for the applicable listings and that
there were no specific listings covering fibromyalgia and chronic fatigue
syndrome. (R. 15).
Before moving to steps four and five, the ALJ determined that
Jones has the following residual functional capacity (“RFC”):
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b),
including the ability to lift and/or carry 10 pounds frequently and 20
pounds occasionally and stand, walk, and/or sit for 6 hours in an 8 hour
workday. The claimant can do occasional postural, but cannot climb
ladders, ropes or scaffolds or be around hazards, such as dangerous
machinery and unprotected heights. Due to her mental impairments, the
claimant cannot have contact with the general public or perform detailed
work or instructions, but she can have occasional contact with
co-workers.
(R. 16). At step four, the ALJ accepted the vocational expert’s testimony that
this RFC left Jones unable to perform her past relevant work as an appraiser,
salesperson, child-care worker and office worker. At step five, the vocational
expert provided testimony from which the ALJ concluded that, “the clamant is
capable of making a successful adjustment to other work that exists in

5

significant numbers in the national economy,” such as the unskilled light
occupations of housekeeper, laundry sorter and optical goods assembler.

(R.

20). A decision of “not disabled” was filed.
ERROR IN WEIGHING OPINION OF TREATING MENTAL SOURCES
In this circuit, it is well settled that “the opinions of physicians who
have seen a claimant over a period of time for purposes of treatment are given
more weight over the views of consulting physicians or those who only review
the medical records and never examine the claimant.” Robinson v. Barnhart,
366 F.3d 1078, 1084 (10th Cir. 2004) (internal quotation marks and citations
omitted). A treating physician's opinion is entitled to such weight due to the
unique perspective afforded in the treating relationship “that cannot be
obtained from the objective medical findings alone.” Id. As a general matter,
the greatest weight is given to the treating physician's opinion with less to the
examining physician and even less to an agency physician. Id. An ALJ is not to
“pick and choose from a medical opinion, using only those parts that are
favorable to a finding of nondisability.” Robinson, 366 F.3d at 1083. The same
holds true as between different medical reports. Hardman v. Barnhart, 362
F.3d 676, 681 (10th Cir. 2004).
The ALJ's evaluation of a treating physician's opinion follows a
sequential analysis:
First, the ALJ must decide whether the opinion is entitled to controlling
weight. For this, she “must first consider whether the opinion is

6

well-supported by medically acceptable clinical and laboratory diagnostic
techniques.” Id. [ Watkins v. Barnhart, 350 F.3d 1297 (10th Cir.2003] )
at 1300 (internal quotation marks omitted). If it is not, then the opinion
is not entitled to controlling weight. If it is, then the ALJ must further
determine whether the opinion is “consistent with other substantial
evidence in the record.” Id. We have held that an ALJ must make a
finding as to whether the physician's opinion is entitled to controlling
weight “so that we can properly review the ALJ's determination on
appeal.” Id.
Jones v. Colvin, 2013 WL 1777333, at *3 (10th Cir. 2013). Should the treating
physician’s opinion not be given controlling weight, the ALJ then must specify
what lesser weight is assigned the treating physician opinion. Robinson v.
Barnhart, 366 F.3d at 1083. Even if not entitled to controlling weight, the
treating source opinion is still entitled to deference and is to be weighed using
all of the following factors:
(1) the length of the treatment relationship and the frequency of
examination;
(2) the nature and extent of the treatment relationship, including the
treatment provided and the kind of examination or testing performed;
(3) the degree to which the physician's opinion is supported by relevant
evidence;
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area upon which an
opinion is rendered; and
(6) other factors brought to the ALJ's attention which tend to support or
contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300–1301 (10th Cir.2003). After
considering the above factors, the ALJ must give good reasons for the weight
ultimately assigned to the opinion. If the ALJ rejects the opinion completely,
then specific, legitimate reasons for doing so must be provided. Watkins, 350

7

F.3d at 1301.
The ALJ noted that Jones was being “treated at Johnson County
Mental Health Center for depression and anxiety” and had been “assessed with
Global Assessments of Functioning of 50.” (R. 15). The ALJ also mentioned the
claimant’s therapist by name, Sherry Martin-McCaughtry, D.O. (R. 15). The
evidence of record includes Dr. Martin-McCaughtry’s progress notes from
November of 2009 through June of 2010. On all the visits, the physician also
described Jones’ mood, affect, thought content, and insight/judgment. (R.
1196, 1199, 1205, 1273). On all visits, the first axis was “depression nos” and
“anxiety nos,” and on the June 2010 visit the physician added “r/o somatoform
d/o vs. malingering for financial gain.” Id. On the GAF assessment in axis five,
the physician on every visit scored it “50.” Id. From the physician’s progress
notes, the ALJ selected only to mention Dr. Martin-McCaughtry’s comments
that Jones “was only focused on perceived physical complaints” and had come
to one session with “yet another obscure research study and theory into the
origins of chronic fatigue.” (R. 15). The ALJ also quoted the note by Dr.
Martin-McCaughtry “to rule out somatoform disorder versus malingering for
financial gain.” Id. As far as making any comments specifically directed at the
opinions of this treating medical source, the ALJ’s decision is limited to this
sentence:

“Further, little weight is given to the GAFs of 50 by her treating

mental source, because progress notes do not indicate that the claimant’s

8

symptoms are more than mild to moderate in severity.” (R. 18).
The plaintiff first challenges the ALJ’s finding that Dr.
Martin-McCaughtry’s GAF assessment1 of 50 is entitled to “little weight” based
on the progress notes indicating only mild to moderate symptoms. (R.18).
There is not substantial evidence of record to sustain the ALJ’s reading of the
progress notes. Dr. Martin-McCaughtry’s recorded progress notes repeatedly
reflect “limited eye contact,” “desperate tone” to her speech, “terrible” mood,
“dramatic” effect, preoccupied with somatic complaints, and “poor” insight and
judgment. (R. 1196, 1199, 1205, 1273). There is nothing in that terminology
that suggests only mild to moderate symptoms. See, e.g., Boucher v. Astrue,
371 Fed. Appx. 917, 921 (10th Cir. 2010) (GAF score did not match description
of patient during appointment). When the ALJ fails to explain or identify any

1 “A GAF score of fifty or less, however, does suggest an inability to keep a

job.” Nguyen v. Astrue, 2010 WL 2628641 at *6 n.7 (D. Kan. 2010). GAF
scores between 41–50 indicate, “[s]erious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) OR any serious impairment in
social, occupational, or school functioning (e.g., no friends, unable to keep a
job).” Clark v. Astrue, 2012 WL 4856996 at *10 (D. Kan. 2012) (quoting Am.
Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM–
IV–TR) 34 (4th ed. text revision 2000). The Tenth Circuit has framed the
weight of such evidence within this context:
Standing alone, a low GAF score does not necessarily evidence an
impairment seriously interfering with a claimant's ability to work. Eden
v. Barnhart, 109 Fed. Appx. 311, 314 (10th Cir. 2004) (unpublished).
The claimant's impairment, for example, might lie solely within the
social, rather than the occupational, sphere. A GAF score of fifty or less,
however, does suggest an inability to keep a job. Oslin v. Barnhart, 69
Fed. Appx. 942, 947 (10th Cir. 2003) (unpublished).
Lee v. Barnhart, 117 Fed. Appx. 674, 678 (10th Cir. 2004) (unpublished).

9

claimed inconsistencies between the opinions of the treating medical provider
and the treatment notes of the medical providers, the ALJ's reason for
rejecting that opinion are not sufficiently specific for review. See Langley v.
Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004). Furthermore, as the court
next discusses, there are no obvious inconsistencies between this medical
source opinion and the progress notes and other medical evidence.
The progress notes establish the continued use of prescribed
medications for the treatment of these symptoms. The court rejects the
Commissioner’s argument that Dr. Martin-McCaughtry’s comments about
Jones’ preoccupation with somatic complaints and her note to rule out
somatoform disorder or malingering provides a reasonably sufficient basis for
construing these progress notes as only evidencing mild or moderate
symptoms.2 The ALJ makes no mention of the therapist’s notes during this
same time period which showed impairment assessments as being either
moderate or serious. (Dk. 1201, 1203, 1275, 1277). The ALJ did reference
from the Johnson County Mental Health Center, Dr. K. Singh, the earlier
supervising therapist, for having completed in February 2009 a Medical

2 “[T]he district court may not create post-hoc rationalizations to explain the
Commissioner's treatment of evidence when that treatment is not apparent
from the Commissioner's decision itself.” Grogan v. Barnhart, 399 F.3d 1257,
1263 (10th Cir. 2005) (citations omitted). Speculation over a physician’s
conscientious evaluation and treatment of a patient is hardly substantial
evidence of mild to moderate symptoms.

10

Questionnaire. (R. 15). Dr. Singh’s evaluation includes a diagnosis of
depressive disorder and adjustment disorder with a fair prognosis. (R. 943).
Dr. Singh opined that Jones could work part-time with a flexible work schedule
and that she should avoid work environments that were “fast paced, high
stress, [and] physically demanding.” (R. 944). The ALJ’s decision does not cite
any evidence indicating that Dr. Singh’s findings are inconsistent with the
opinions later expressed by Dr. Martin-McCaughtry, both of whom treated
claimant for mental health issues.
After this finding on the GAF score, the ALJ’s decision includes this
statement: “In addition, the assessments by the State agency physician and
psychologist are given some weight, as they are generally consistent with the
overall record, test results and her daily activities.” (R. 18). The plaintiff
contends the ALJ erred in giving these opinions from non-examining,
non-treating state agency physicians. The plaintiff notes that the opinions of
these state agency physicians were given more than a year before the ALJ’s
decision, were offered without considering the later opinions of Dr.
Martin-McCaughtry and her treatment notes, and were provided on check-box
forms with little explanation in support of the opinions. The plaintiff’s
arguments are well taken that the evidence of record certainly offers little to
support the ALJ’s finding to give more weight to the consulting, non-examining
physician than the mental health treating physicians. As for the ALJ’s opinion

11

that the mental symptoms are only mild or moderate due to the lack of
emergency room visits or hospitalizations, the ALJ cites no medical evidence to
support his own opinion that such treatment is necessary to indicate severe
symptoms when someone is also receiving ongoing individual therapy. See
Daniels v. Astrue, 2011 WL 6372866 at *4-*5 (D. Kan. 2011).
The record shows that in late 2008 and into 2009, Jones was
treated at the Mercy & Truth Medical Missions. Dr. Simon did a consultation on
November 3, 2008, and found 11 of 18 fibromyalgia trigger points that day. (R.
794). The diagnostic assessment included, “Depression, Anxiety, Insomnia,
probable fibromyalgia, Myalgias/arthralgias, PM hypotension.” Id. A
prescription of Lyrica was started for the fibromyalgia. In December of 2008,
Dr. Simon’s notes show that Jones was “very fatigued but sleeping worse at
night than usual.” (R. 795). The assessment this month included “Fibromyalgia
and CFS.” Id. Dr. Simon increased the prescription for Lyrica. In January of
2009, Jones was seen by Dr. Simon’s nurse practitioner who recorded that
Jones would be sending over a limitations form required for her participation in
vocational rehabilitation. (R. 796). The nurse practitioner included in the
assessment:

“Fibromyalgia (multiple tender and tense muscle groups.)” Id.

In February of 2009, Dr. Simon saw Jones who complained of weight gain with
the Lyrica but less aches. Jones noted that she was “[s]till very fatigued.” (R.
797). Dr. Simon’s assessment reads in part:

12

“Fibromyalgia (multiple tender

and tense muscle groups)” and “Chronic Fatigue.” Id. The prescription for
Lyrica was decreased. Dr. Simon noted they were still waiting on the
Vocational Rehabilitation form. In March of 2009, Dr. Simon records problems
with low blood pressure and fainting but that pain was tolerable based on the
combination of Lyrica, Aleve and Tylenol. (R. 1126). The assessment included:
“Fibromyalgia (multiple tender and tense muscle groups)” and “Chronic
Fatigue.” Id.
The ALJ mentions Dr. Simon for having a completed a Medical
Questionnaire for Vocational Rehabilitation Services. (R. 15). The ALJ wrote
that “Dr. Simon indicated that the claimant would need to be able to change
positions between sitting, walking and standing, but could not be around
extreme temperatures or chemicals, climb and lift more than 10 pounds” and
“that the claimant could work low stress part-time work with a flexible
schedule.” (R. 15). On the questionnaire, Dr. Simon listed the diagnosed
conditions as “fibromyalgia, anxiety, depression, insomnia, hypotension,
chronic fatigue, irritable bowel syndrome, anthralgias,” with a prognosis that
these are “chronic diseases that wax and wane.” (R. 941). The ALJ’s evaluation
of Dr. Simon’s opinion evidence is limited to the following combined discussion
of all medical opinion evidence:
As for the opinion evidence, the undersigned gives controlling weight to
the opinions of the treating sources, who indicate that there is nothing to
explain her symptoms, because these are consistent with progress notes
and numerous negative tests of record. However, little weight is given to

13

the treating source opinions that the claimant is unable to work full time
due to her symptoms, because this is inconsistent with conservative
treatment of record, negative test results, and her daily living activities,
including her ability to raise her children. These opinions appear to be
based entirely on subjective complaints and not any objective testing.
(R. 18).
The plaintiff argues that the ALJ’s reasons for discounting Dr.
Simon’s opinion, and that of Dr. Singh’s, are not rooted in substantial
evidence. “In choosing to reject the treating physician's assessment, an ALJ
may not make speculative inferences from medical reports and may reject a
treating physician's opinion outright only on the basis of contradictory medical
evidence and not due to his or her own credibility judgments, speculation or
lay opinion.” Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004)
(quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (italics in
original)). “What the court condemned in Langley was that the ALJ had “no
legal nor evidentiary basis for” his finding that the physician's opinion was
“based only on claimant's subjective complaints.” Cook v. Astrue, 554 F. Supp.
2d 1241, 1247 (D. Kan. 2008) (quoting Langley, 373 F.3d at 1121). The
plaintiff contends the ALJ is simply speculating that Dr. Simon’s conclusion is
based only on subjective complaints, and this speculation ignores the evidence
of record and fails to recognize that subjective complaints can be an
appropriate diagnostic tool.
As summarized above, Dr. Simon diagnosed fibromyalgia after

14

finding 11 of 18 fibromyalgia trigger points. This court and others recognize
that “the symptoms of fibromyalgia are entirely subjective, and there are no
laboratory tests to identify its presence or severity.” Gregory v. Colvin, 2013
WL 5390019, at *3-*4 (D. Kan. 2013) (citing in part Wilson v. Astrue, 602 F.3d
1136, 1143 (10th Cir.2010)(noting that no objective medical tests reveal the
presence of fibromyalgia); Gilbert v. Astrue, 231 Fed. Appx. 778, 783–784
(10th Cir. Apr. 11, 2007)(the lack of objective test findings noted by the ALJ is
not determinative of the severity of fibromyalgia); Priest v. Barnhart, 302 F.
Supp. 2d 1205, 1213 (D. Kan. 2004); Glenn v. Apfel, 102 F. Supp. 2d 1252,
1258 (D. Kan. 2000). Diagnosed by ruling out other diseases, fibromyalgia or
its potential for being a disabling condition is not ruled out by the absence of an
objective medical test. Priest, 302 F. Supp. 2d at 1213. Fibromyalgia is
diagnosed entirely on the basis of patients' reports and other symptoms.
Brown v. Barnhart, 182 Fed. Appx. 771, 773 n. 1 (10th Cir. May 25, 2006). The
rule of thumb is that the patient must be positive on at least 11 of the 18
tender points to be diagnosed with fibromyalgia. Gilbert, 231 Fed. Appx. at
783; Brown, 182 Fed. Appx. at 773 n. 1; Glenn, 102 F.Supp.2d at 1259. “As
this court has previously indicated, it is error for the ALJ to discount plaintiff's
allegations of limitations due to fibromyalgia because of the lack of objective
medical evidence.” Gregory v. Colvin, 2013 WL 5390019, at *4 (citing Burgess
v. Colvin, Case No. 12–1258–SAC (D. Kan. Aug. 21, 2013; Doc. 17 at 9); Gibbs

15

v. Colvin, Case No. 11–1318–SAC (D. Kan. March 6, 2013; Doc. 30 at 6–9);
Walden v. Astrue, Case No. 11–4120–SAC (D. Kan. Aug. 28, 2012; Doc. 15 at
15–16)). The ALJ improperly discounted the opinion of Dr. Simon and her
diagnosis of fibromyalgia as based on subjective complaints and not objective
testing.
Other reasons apparently listed by the ALJ for giving little weight
to Dr. Simon’s assessment were “conservative treatment record, negative test
results, and her daily living activities including the ability to raise her children.”
(R. 18). Just saying the treatment is conservative or just saying there are
negative test results does not constitute medical evidence. First, the ALJ's
cursory treatment of the Dr. Simon’s opinion does not convince or satisfy the
court that the ALJ considered all the relevant factors that must be considered
when determining what weight should be accorded the medical opinions of
treatment providers. See Andersen v. Astrue, 319 Fed. Appx. 712, 721–723,
727 (10th Cir. April 3, 2009). Second, there is no medical evidence of record to
sustain the ALJ’s own opinion that treatment of Jones’ fibromyalgia and chronic
fatigue syndrome was conservative and indicative of only mild to moderate
symptoms. An ALJ may reject a treating physician's opinion outright only on
the basis of contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion. McGoffin v. Barnhart, 288
F.3d 1248, 1252 (10th Cir. 2002).

16

From its review of the record, the court has found medical
evidence from referrals with negative testing results for other possible causes
for her pain and fatigue. With respect to the fibromyalgia, the ALJ did write
when assessing the claimant’s credibility, “[e]ven some doctors have noted
that she did not have appropriate tenderness at trigger points for fibromyalgia,
which is the basis for establishing the diagnosis of fibromyalgia (Exhibit
B38F).” (R. 17). In that exhibit, the court found only one medical source report
consistent with the ALJ’s statement. It was prepared by Dr. Khan in April of
2010 after a single consulting examination by referral. He wrote: “At this time,
I cannot pinpoint one pain generator as the main source of her discomfort. I
believe, she does have a generalized migratory pattern of myofascial
discomfort, may be borderline fibromyalgia, although she does not have very
many positive tender points today.” (R. 1208). During that same period, the
claimant was seen several times by other treating physicians who reported
positive system reviews for myalgias and included assessments for
fibromyalgia. (R. 1218, September 28, 2010; R. 1210, April 29, 2010). Dr.
Khan’s report from a single consulting exam is cautiously worded to emphasize
the plaintiff’s condition on a particular day. This is hardly substantial evidence
of contrary “negative test results” that undermine Dr. Simon’s diagnosis and
her ongoing treatment of Jones for fibromyalgia and her evaluation of Jones’
limitations.

17

Finally, the court does not find substantial evidence to sustain an
inconsistency between the treating physicians’ opinions and Jones’ “daily living
activities, including her ability to raise her children.” (R. 18). It is proper for an
ALJ to consider ADLs when evaluating credibility, Hamlin v. Barnhart, 365 F.3d
1208, 1220 (10th Cir. 2004), but minimal ADLs do not constitute “substantial
evidence that a claimant does not suffer disabling pain,” Id. at 1221 (quotation
omitted). The evidence on Jones’ ADLs is “much more nuanced than the ALJ’s
summary suggests.” Wells v. Colvin, 727 F.3d 1061, 1070 (10th Cir. 2013). At
the time of the hearing, Jones was living with her 15-year-old son who she
describes as self-sufficient taking care of his own laundry and preparing his
own breakfast. On her “good days,” Jones described her household chores as
washing dishes “once or twice a week,” preparing “a dinner maybe once a
week,” doing her own laundry “about once every four to six weeks,” and
sweeping “the kitchen floor a couple times a month.” (R. 36). She reported
receiving help with the household chores from her mother and sister when she
was not feeling well. (R. 155). Jones described that on “good days” she did
these household chores for “maybe 1-2 hours with frequent rest breaks.” (R.
218). Her mother’s third-party statement confirms that “on good days” Jones
could do light cleaning, laundry and landscaping work. (R. 195). This evidence
of daily living activities is not inconsistent with the opinions of Dr. Simon or
Singh on Jones being capable of part-time employment with a flexible work

18

schedule.
As fully discussed and outlined above, the ALJ’s reasons for
according weight and evaluating the opinions of the treating physicians’ and
the non-examining, non-treating State agency physicians are not supported
by substantial evidence of record. There is little of record to assure the court
that the ALJ looked to all the relevant factors and considered all the medical
evidence in evaluating these medical opinions. The ALJ’s cursory grouping of
reasons for discounting these opinions lacks the specificity to sustain a
substantial evidence review. The case must be reversed for further
proceedings. On remand, the ALJ should take the opportunity to address the
medical and vocational evidence regarding the plaintiff’s ability to perform
sustained work-related physical and mental activities in a work setting on a
regular and continuing basis pursuant to SSR 96-8p.
IT IS THEREFORE ORDERED that the decision of the Commissioner
is reversed and the case is remanded pursuant to sentence four of 42 U.S.C. §
405(g) for further proceedings consistent with this memorandum and order.
Dated this 11th day of February, 2014, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

19